PEOPLE v. DIAZ

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Raymond DIAZ, Defendant-Appellant.

Decided: October 18, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, SWEENY, JJ. Laura R. Johnson, The Legal Aid Society, New York (Jeffrey I. Richman of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jill Graziano of counsel), for respondent.

Judgment, Supreme Court, New York County (Herbert I. Altman, J. at hearing;  Budd G. Goodman, J. at plea and sentence), rendered March 4, 2004, convicting defendant of attempted criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 1 1/212 to 3 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   The police had, at the very least, an objective, credible reason upon which to request identification from defendant, a passenger in a vehicle which was illegally stopped in a bus stop, after defendant acted in a highly suspicious and disorderly manner (see People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992];  People v. Alvarez, 308 A.D.2d 184, 187-188, 764 N.Y.S.2d 42 [2003], lv. denied 1 N.Y.3d 567, 775 N.Y.S.2d 784, 807 N.E.2d 897 [2003] ).   The lawful request for identification led to probable cause to believe defendant was wanted on an outstanding warrant.   The record also supports the hearing court's alternative finding that the police had probable cause to arrest defendant for disorderly conduct, and defendant's appellate arguments to the contrary are unpreserved and unavailing.